Citation Nr: 0803110
Decision Date: 01/29/08 Archive Date: 02/08/08
DOCKET NO. 03-03 863 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for hepatitis C.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. B. Mays, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1978 to May
1979. Her claims folder has been rebuilt.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision of the
Albuquerque, New Mexico Regional Office (RO) of the
Department of Veterans Affairs (VA).
In April 2003, the veteran testified before the undersigned
Acting Veterans Law judge sitting at the RO. A copy of the
hearing transcript is of record and has been reviewed.
In August 2004, the Board referred this case for a VA medical
expert opinion. The case is now before the Board for
appellate review.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran seeks service connection for hepatitis C, which
she attributes to treatment received for her service-
connected Chron's disease. Specifically, she contends that,
in November 1982, while undergoing a right colectomy, she was
given a blood transfusion, which in turn, caused hepatitis C.
On review, the Board finds that further development is
necessary prior to analyzing the claim on the merits. The
veteran's original claims folder has apparently been
misplaced and, as noted, the current folder has been rebuilt.
It is not clear whether a notice letter pursuant to the
Veterans Claims Assistance Act of 2000 was ever issued to the
veteran. In any event, such letter is not contained in the
current claims folder.
Also, although the claims folder has now been rebuilt, the
veteran's representative asserts that further efforts should
be made to confirm that the original claims folder cannot be
retrieved. The representative indicates that the record does
not document a search of all possible locations of the
veteran's original folder (see October 2007 informal brief).
Review of the record does not reflect what efforts were made
by the RO to locate the original claims folder. The current
record shows that the original claims folder was recently at
the ROs in Albuquerque and Denver, as well as the VA Medical
Centers (VAMCs) in Denver and Kansas City.
Lastly, according to the October 2007 representative's brief,
the veteran stated that the 1982 procedure for a right
colectomy was paid for by CHAMPUS. It was noted that if
CHAMPUS paid the bill, the reported blood transfusion might
be listed on the bill.
In cases such as this, where the original claims folder is
unavailable, VA has a heightened duty to assist the veteran
with his claim. See O'Hare v. Derwinski, 1 Vet. App. 365,
367 (1991).
Accordingly, the case is REMANDED for the following action:
1. The RO in Albuquerque should make an
attempt to locate the veteran's original
claims folder. The RO in Albuquerque
should also ask the RO in Denver to
conduct a search for the veteran's
original claims folder. A copy of the
search request(s) and any response(s)
should be associated with the claims
folder. If any records are unavailable,
a negative reply should be made part of
the veteran's claims folder.
2. The RO should request that the VAMCs
in Albuquerque, Kansas City, and Denver
search for the veteran's original claims
folder. All efforts should be
documented, and associated with the
claims folder.
3. Any prior VCAA notices issued to the
veteran should be associated with the
claims folder, as well as copies of
rating decisions, statements of the case
and the appeal statement. If VCAA notice
was not provided to the veteran, or if a
previous notice letter(s) is not
available, the RO should:
(a) Notify the veteran of the information
and evidence necessary to substantiate
her service connection claim for
hepatitis C.
(b) Notify the veteran of the information
and evidence she is responsible for
providing for her service connection
claim.
(c) Notify the veteran of the information
and evidence VA will attempt to obtain,
e.g., that VA will make reasonable
efforts to obtain relevant records not in
the custody of a Federal department or
agency and will make as many requests as
are necessary to obtain relevant records
from a Federal department or agency; and
(d) Request that the veteran provide any
evidence in her possession that pertains
to the claim.
4. After obtaining any necessary
authorization(s), the RO should request
documentation from CHAMPUS related to any
payment made in connection with the
veteran's November 1982 surgery (right
colectomy) at Quincy Hospital.
5. Upon completion of the above-
requested development and any development
deemed necessary, the RO should
readjudicate the veteran's service
connection claim for hepatitis C. All
applicable laws and regulations should be
considered. If the benefit sought on
appeal remains denied, the veteran and
her representative should be provided
with a supplemental statement of the case
and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).